The World Set Rules For Returning Nazi-Looted Art. Are They Working?

In November, the Austrian government revealed that nearly two decades ago it returned the wrong Nazi-looted Gustav Klimt painting to the wrong Jewish family.

France’s president, Emmanuel Macron, is working to return cultural items looted by colonialists to their African countries of origin.

Elaborate, precise heists are targeting Chinese artifacts in museums across the globe, and China’s government may be behind them.

It’s been a weird year in the world of international art restitution.

That world, an often-secretive one of dense legal theory and backroom negotiations, has been informed for the last 20 years by the Washington Conference Principles on Nazi-Confiscated Art, more commonly known as the Washington Principles. That set of guidelines, released on December 3, 1998 by 42 countries and a number of Jewish interest groups, was intended to regulate the means by which governments worldwide would set about returning art looted by Nazis to its rightful owners.

It’s kind of, sort of worked — depending on who you ask. Here’s everything you need to know to understand what’s happened over the last 20 years, and what it means.

What are the Washington Principles?

The Washington Principles are short and simple. Drafted by the United States’ then-Under Secretary of State for Economic, Business and Agricultural Affairs Stuart Eizenstat, the 11 precepts lay out the steps needed to ensure that art stolen during the Holocaust would be returned to its proper owners. Over half a century after the end of the Holocaust, the Principles were the first internationally agreed-upon document to suggest any such procedure.

The Principles are broadly defined, lacking details regarding the difficulty of executing them. See Principle 1: “Art that had been confiscated by the Nazis and not subsequently restituted should be identified.” Or Principle 9: “If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution.”

Crucially, the Principles are nonbinding. So while 42 countries participated in the 1998 Washington Conference on Holocaust-Era Assets, which endorsed the Principles, only a small number of those countries have made a systematic effort to follow through on them.

“It was up to each country that endorsed them to implement special procedures so as to facilitate the identification and return, if applicable, of looted objects in public collections,” said Marc Masurovsky, cofounder of the Holocaust Art Restitution Project. “Only 5 countries out of 42 set up some form of mechanism to address the restitution of objects looted and displaced during the Nazi years — [the] UK, France, Germany, Austria, and the Netherlands.”

International efforts to advance the return of art looted during the Holocaust have continued; in 2009, Prague hosted a conference on the return of Holocaust-era art that culminated in the Terezin Declaration, a document endorsed by 46 attending countries that reaffirmed the Washington Principles. But the Terezin Declaration, like its predecessor, was non-binding.

In the United States, where the State Department and U.S. Holocaust Memorial Museum organized the Washington Conference, the Principles were followed in 1998 by the Holocaust Victims Redress Act, which essentially served as a legislative affirmation of the Principles, and in 2016 by the Holocaust Expropriated Art Recovery Act, or HEAR Act. The HEAR Act, which was sponsored by Senator John Cornyn and will remain in effect through 2027, established limitations on the legal arguments that could be deployed against individuals and families attempting to reclaim art stolen from their families during the Holocaust. Those limitations were critical, because in the decades since the Principles were released, Holocaust survivors and their heirs have often been unsuccessful in filing such claims — frequently for bureaucratic reasons.

What have the Washington Principles done? What are their flaws?

“Things have gone wrong,” said Jennifer Kreder, a law professor at Northern Kentucky University who specializes in cultural property law. “There are provisions in the Washington Principles that say we should encourage claimants to come forward, and that the museums should consider waving statute of limitations-type defenses.” Such defenses rest on the grounds that property claims must be made within a specific window of time after the loss of the original object.

For individuals and families who lost property during the Holocaust, meeting statutes of limitations has often proved unfeasible, for the simple reason that finding out what happened to a work of art after the war is extremely difficult. Many works of art that were stolen by the Nazis remain missing to this day, and when works have resurfaced, proving ownership requires access to information, like ownership deeds, that is often held by the works’ new owners.

Yet cultural institutions in America flouted the Washington Principles, Kreder said: “We now have museums who have sued survivors solely on statute of limitations grounds in order to block their claims. What that means is that there will never be any objective review of the merits of the claim.”

Hence the HEAR Act, which prohibits claims to Nazi-looted artwork from being “unfairly barred by statutes of limitations.” The Act elaborates on the Principles’ stipulation that restitution claims meet “a just and fair solution,” a precept that Masurovsky says was flawed from the start. “Under the concept of ‘fair and just solutions,’ claimants have been forced to accept settlements which do not lead to the transfer of title [of the claimed object] to them or their heirs,” he said, “unless they have the resources to litigate their claims.”

Kreder pointed out that another barrier to the success of the Washington Principles, beyond their unenforceability, is the fact that they did not define what counts as Nazi-looted art. Specifically of concern, she said, is the lack of acknowledgment of art sold by Jewish families attempting to flee Nazi Germany, known as flight art.

“[From] when the Nazis came to power [in] 1933 until the first Nuremberg laws were passed in 1935, a decent number of people who were lucky enough to get exit visas had to pay what’s called the flight tax,” she said. That tax “forced people to give up 25% of all of their asset value as the Nazis value it; they’re probably losing a lot more that 25%, because the Nazis are setting the price.”

Museums, Kreder said, have tended to argue that flight art falls outside the purview of Nazi-looted art. “The museums are basically saying the art was sold as a result of general economic pressure, just like the Great Depression,” she said. “That’s not the case. The only people who were being squeezed at the time were Jews.”

Despite the many legal and cultural obstacles facing individuals and families who attempt to reclaim art lost in the Holocaust, some such efforts have been successful. Recent years have seen a steady trickle of returns. In October, for instance, officials in New York organized the return of Renoir’s “Deux Femmes Dans Un Jardin” to Sylvie Sulitzer, heir of the art collector Alfred Weinberger; that same month the Virginia Museum of Fine Arts returned the 16th-century painting “Madonna and Child Enthroned With Saints Nicholas of Tolentino and Sebastian” to Marei von Saher, heir of the Dutch Jewish art dealer Jacques Goudstikker.

“I think that they’ve been transformative,” said Eizenstat, now Special Expert Adviser to the State Department on Holocaust-Era Issues. “There’s basically no significant art dealer or museum, private or public, in the United States or Europe that doesn’t now check the ownership history of the art for any new acquisitions or gifts to see if any of them passed through European hands between 1933 and 1945.”

Pointing to the creation of several databases available to claimants looking to see if art looted from their families has resurfaced, Eizenstat cited the successful restitution of large numbers of artworks: “Austria has restituted over 30,000 artworks [and other objects], Germany over 16,000,” he said. Eizenstat pointed out that this achievement, despite the fact that the Principles are nonbinding, has in fact made their effect “all the more impressive.”

Wait, what does this have to do with France and China?

Is there really a connection between Austria’s farcical return of the wrong painting to the wrong family, France’s initial attempts to restitute colonially looted art to African nations and potential extra-legal efforts by China to recover its cultural property?

You bet, Kreder said. 20 years after the introduction of the Washington Principles, their broad dictates about the just return of art gained through improper means have begun to have broader applications.

“Holocaust-era art, how we deal with it provides a framework for how future restitution considerations should be made,” she said. “There are differences, but it doesn’t mean the principles aren’t the same.”

At a conference in Berlin this November, Eizenstat said the applicability of the “spirit of the Washington Principles” had been a subject of significant discussion. Monica Grütters, Germany’s culture minister, “announced that they’re going to start looking at their art taken from the colonial period, from their African possessions,” Eizenstat said. And he noted that the European Parliament is “very close to passing a piece of legislation that would adopt the Washington Principles and set out guidelines for how you deal with cultural objects in conflicts and wars.”

What comes next?

Masurosvsky and Kreder agree that significant changes would need to be made to the Washington Principles in order for the next two decades to see more substantial progress in the field of Holocaust art restitution.

First, Kreder said, the HEAR Act will need to be renewed before its 2027 expiration. And authorities should engage in a more vigorous effort to help potential claimants access the information they need to move forward. “The biggest issue is the lack of information,” she said. “This information is locked up in archives that are not public.” Currently, the only way to access such archives is through legal action, a path that requires financial means that are often out-of-reach.

She pointed out, as well, that if an artwork is seen to have too little financial value to support the costs of a lawsuit, it may well go unclaimed. That accounting, however, doesn’t reduce the emotional value ascribed to such objects, and authorities should think more deeply about ways to facilitate claims subject to this economic calculus. “It’s a lost opportunity to stand for justice,” she said.

The United States Congress has taken an additional step to improve the process of restitution; the 2018 Justice for Uncompensated Survivors Today Act, or JUST Act, requires the Department of State to complete a comprehensive assessment of the compliance of signatories to the Terezin Declaration by November 2019. That review, Eizenstat said, will be an important step forward in advancing the restitution process.

Masurovsky laid out several ways that legislation could improve the restitution process. One relatively easy step, he said, would be to “ensure that all historical data pertaining to thefts and displacements of objects during the Nazi years are not subject to use and publication restrictions by European data privacy laws.” Similarly, he said, nations could “regulate the publication of provenance information so that museums, galleries, and auction houses are required to list as much as information as possible.”

Eizenstat said that the most significant steps toward restitution remain to be taken in Europe, rather than the United States.

“I’d like to see the German federal government take over the responsibility for their state museums,” he said, noting that Germany gave enormous numbers of paintings, some potentially looted, to their state museums following the end of World War II. But Europe’s publicly-owned museums are only the start: “The private art trade is a major, major problem,” Eizenstat said.

“I call it the glass half-full,” Eizenstat said. Masurovsky’s take was somewhat different.

““Eliminate the Washington Principles, as they have been a total failure,” he said.

Correction, December 21 2018, 3:20 pm: A previous version of this article mis-quoted Stuart Eizenstat as saying that Austria had restituted 3,000 artworks. It has in fact restituted 30,000.

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